2009 (12) TMI 3 - AT - Service Tax

Cenvat Credit Input Services Wrong Availment Business Auxiliary Services - Rule 14 of Cenvat Credit Rules, 2004 held that - the respondents (assessee) had availed credit of service tax paid by it under the category Business Auxiliary Service . The original authority had disallowed the credit and demanded the same on the ground that the service involved was correctly classifiable under another category namely Manpower Recruitment and Supply Agency . There is no dispute that this service was introduced on 16-6-2005 and that the respondents had availed the impugned service prior to that date. Therefore, the service involved was incorrectly assessed under Business Auxiliary Service and tax collected from the service provider. As the respondents had paid the service tax and taken credit on the basis of valid documents, its eligibility to such credit cannot be questioned on the basis that the assessment of the service by the Department at the end of the service provider was incorrect.

Summary

Issues:
1. Eligibility for CENVAT credit under the Central Excise Act, 1944.
2. Classification of services under 'Business Auxiliary Service' and 'Manpower Recruitment and Supply Agency'.
3. Validity of availing credit based on service assessment by the Department.

Analysis:

Issue 1: The original authority demanded an amount for wrongly availed input service credit under Rule 14 of CENVAT Credit Rules, 2004, read with Section 11A/11AB of the Central Excise Act, 1944. The Commissioner (A) found the respondents eligible for the CENVAT credit availed on service tax paid under 'Business Auxiliary Service'. The appeal challenged the order, arguing that the service should be classified under 'Manpower Recruitment and Supply Agency' introduced after the service was received. However, the Tribunal upheld the eligibility of the credit, stating that once tax was collected based on valid documents, the correctness of the assessment by the service provider could not be questioned.

Issue 2: The dispute arose from the classification of services under 'Business Auxiliary Service' and 'Manpower Recruitment and Supply Agency'. The Commissioner (A) noted that the service in question was assessed under 'Business Auxiliary Service' before the introduction of 'Manpower Recruitment and Supply Agency'. The appeal contended that since the service was received before the new classification, the credit availed was not valid. However, the Tribunal held that as the tax was paid and credit taken based on valid documents, the eligibility for credit could not be disputed.

Issue 3: The validity of availing credit based on the Department's assessment of the service provider's classification was questioned. The original authority disallowed the credit, claiming the service should be classified differently. The Tribunal, however, maintained that since the service tax was paid and credit taken in accordance with valid documents, the eligibility for credit could not be challenged solely on the basis of the Department's assessment of the service provider's classification. Therefore, the impugned order was sustained, and the appeal by the Revenue was dismissed.

In conclusion, the Tribunal upheld the eligibility of the CENVAT credit availed by the respondents under the 'Business Auxiliary Service', dismissing the appeal by the Revenue challenging the classification and validity of the credit based on the service assessment by the Department.